Saturday, August 12, 2006
- Mary Catherine Daly (left) & Carole Silver (right), Flattening the World of Legal Services? The Ethical and Liability Minefields of Offshoring Legal and Law-Related Services (91).
- Ian Malcolm Ramsay, Andrew Barnes, Tanya Josev, Jarrod Lenne, Shelley D. Marshall, Richard Mitchell, & Cameron Rider, Employee Share Ownership Plans: Evaluating the Role of Tax and Other Factors Using Two Case Studies (29).
- Zvi Bodie & Jonathan Treussard, Making Investment Choices as Simple as Possible But Not Simpler (121).
- Ethan Yale & Gregg D. Polsky, Reforming the Taxation of Deferred Compensation (113).
- Martin J. Conyon, John E. Core, & Wayne R. Guay, How High is US CEO Pay? A Comparison with UK CEO Pay (71).
- Paul Fronstin (photo above), The Tax Treatment of Health Insurance and Employment-Based Health Benefits (69).
- Gordon Leslie Clark & Ashby Monk, The 'Crisis' in Defined Benefit Corporate Pension Liabilities: Current Solutions and Future Prospects (68).
Friday, August 11, 2006
Ronald S. Cooper (shown here with EEOC Chair Cari Dominguez and EEOC Chief Operating Officer Leonora Guarraia) was sworn in today as General Counsel of the EEOC for a term of four years. Cooper, most recently a partner with the Washington office of Steptoe & Johnson LLP, was nominated by President Bush on March 27 and unanimously confirmed by the U.S. Senate on July 26.
This is classic. From Ted Frank over at Overlawyered:
Scanning through million-dollar verdicts looking for Overlawyered stories, I found this $1.1 million verdict against a California law firm for failure to accommodate an attorney who asked to be able to bill 140 hours a month while undergoing treatment for liver disease.
Not especially notable, but I was highly entertained that the law firm's defense was that it really fired Warren Snider because he took time off to go to his father-in-law's memorial service. (Tina Bay, "Jury Awards Lawyer $1.1 Million in Wrongful Termination Suit", Metropolitan News-Enterprise, Aug. 7).
OK, who is more to blame here: the law firm for thinking that this defense would be in the firm's long term interest (regardless of whether it could actually serve as a valid ADA defense) or the lawyer who agreed to present this defense for the firm in the first place?
It's a toss-up.
Paul Caron at Tax Prof has the full scoop. Here's a taste:
This report presents the results of our review to determine whether the IRS's email system was being used properly by employees and was secured by system administrators.
IRS employees are violating provisions of the personal use policy with their email usage. Specifically, [the IRS inspector] found inappropriate email messages in 74% of the employee mailboxes reviewed. These inappropriate email messages contained chain letters, jokes, offensive content, and sexually explicit content. The IRS' personal use policy protects the organization from employee actions that might harm or bring unnecessary risk to the organization.
So government employers have the same problems as private sector employers. No surprise there. But 74%. Wow! You know you would think that with all the workplace monitoring of computers these days, government agencies like the IRS would be in the forefront. Apparently not.
I wonder though if the number of inappropriate emails is as high in the private sector, or are these numbers somehow related to scintillating work the IRS performs?
Susan Bisom-Rapp (Thomas Jefferson) writes to us about an exciting new book that may be of great interest to labor and employment law professors: Sex Discrimination in Employment: Multidisciplinary Perspectives (Faye J. Crosby, Margaret S. Stockdale & S. Ann Ropp, eds., Blackwell forthcoming 2007).
Here's how Susan describes the book:
The book is divided into four parts. Part I covers "What Employers and Employees Should Know About Sex Discrimination," and contains chapters by psychologists Faye Crosby and Margaret Stockdale, management attorney Jonathon Wetchler, and the law professor/psychology professor team of Theresa Beiner and Maureen O'Connor.
Part II is titled "From the Trenches: Individual narratives from plaintiffs, attorneys and expert witnesses. There are chapters in it by well-known academics who serve as experts including Barbara Gutek and Eugene Borgida. Plaintiffs testimonials include one by Anne Hopkins.
Part III provides "Disciplinary Perspectives." Psychologists Peter Glick and Susan Fiske cover the psychological understanding of sex discrimination. Sociologists Cecelia Ridgeway & Paula England tackle the sociological approach to the problem. Economist Barbara Bergmann writes about the economist's understanding of gender bias. And Deborah Rhode and Joan Williams tackle all things legal.
Part IV discusses "Potentials Solutions to the Problems of Sex Discrimination in
Employment." I co-authored a chapter with psychologists Faye Crosby and Margaret
Stockdale called "A Critical Look at Organizational Responses to and Remedies for
Sex Discrimination." Linda Kreiger has a great chapter called "The Watched Variable Improves: On Eliminating Sex Discrimination in Employment."
Check it out!
OSHA reported yesterday that the number of workplace fatalities totaled 5,702 last
year, down from 5,764 in 2004. The fatality rate also declined last
year to 4.0 per 100,000 employees, down from 4.1 in 2004.
Highway accidents remain by far the most frequent way people die on the job (1428 in 2005). That's followed by falls (767), being struck by an object (604), and homicides (564).
Constuction was the occupation with the largest number of deaths (1186), followed by transportation and warehousing (881). Agriculture/forestry/fishing/hunting was the occupation with the largest fatality rate (32.5 per 100,000 workers), followed by mining (25.6 / 100k).
Fatal falls declined 7 percent last year from an all-time high recorded just a year earlier. Further, fatal work injuries among roofers dropped sharply, by 44 percent, and, fatalities among women in 2005 (402) were the lowest annual total ever recorded by the census. While the number of fatalities among Hispanic employees edged up slightly last year due to increased employment of Hispanic workers, the actual fatality rate declined.
For all the numbers, see OSHA's Census of Fatal Occupational Injuries in 2005.
Thursday, August 10, 2006
Sometime Workplace Prof Blog guest blogger Colleen Medill (Nebraska) has posted her forthcoming piece in the John Marshall Law Review: Resolving the Judicial Paradox of Equitable Relief Under ERISA Section 502(a)(3).
Here's the abstract:
This Article reviews the state of federal law concerning equitable remedies under Section 502(a)(3) of ERISA and developes a statutory and policy-based theory to address what is appropriate equitable relief for the six categories of defendants and related claims that are possible under Section 502(a)(3).
As a co-presenter at the conference in which this piece was presented, I can tell you that this article goes a long way in bringing some clarity to this arcane area of ERISA law. Indeed, it is a must-read for ERISA junkies like myself. You can download it here.
Thanks to Susan Mangerio of Pension Risk Matters for bringing this article, Lawsuits Could Raise Scrutiny of Compensation Surveys, from Workforce Management to my attention. We previously mentioned these cases in passing in June, but here's some more information about their nature and perhaps the motivation behind the lawsuits:
Participating in salary surveys helps many employers stay on top of compensation trends in their industries. Such surveys often act as the bread and butter for companies’ recruiting and retention efforts.
But a recent spate of lawsuits may put this kind of information sharing under a microscope.
Four class-action lawsuits filed simultaneously in June against separately owned hospitals in Chicago; Albany, New York; Memphis, Tennessee; and San Antonio allege that they conspired to keep nurses’ wages down.
The lawsuits, which were filed in federal court in the four cities, allege that the hospitals exchanged compensation information through telephone conversations, meetings and written surveys and that "the exchange of this information itself has suppressed competition" among the hospitals in how they compensate their nurses and thus kept wages low in violation of antitrust laws. The suits have raised the eyebrows of labor lawyers, who note that evidence for the cases was uncovered by the Service Employees International Union.
Believe it or not, all this litigation stems from a larger corporate campaign by the Service Employees International Union (SEIU) against these hospitals. As one management side attorney in the article notes, such corporate campaigns are effective because, "[t]hese kinds of tactics help unions to prove that they are working in the interest of employees while putting pressure on employers."
Sharon Rabin-Margalioth (Interdisciplinary Center Herzliyah (Israel) - Radzyner School of Law) has posted on SSRN her recently published piece in the Duke Journal of Gender Law & Policy: Love at Work.
Here are some excerpts from the abstract:
Today many people form personal relationships at work with co-workers, supervisors, subordinates or clients. As Americans are getting married at an older age and are working longer hours in less sex-segregated work environments, it is inevitable that some workplace interaction will go beyond being purely professional. This phenomenon is a cause of concern to managers, because the professional and personal spheres are beginning to blur. Employers are now confronted with situations in which employees are not only preoccupied with personal issues arising from outside of work, but with personal interactions with other members of the organization during working hours. This situation threatens traditional ideas of what should take place at work.
In this paper I discuss examples of two types of regulations that employers have been gradually implementing, antinepotism rules and nonfraternization policies. In both cases the proffered rationale for these rules is based on interests other than the employer's desire to keep personal relationships out of the workplace. Supposedly, antinepotism rules are about issues of favoritism and conflicts of interest, while nonfraternization policies are a means to fight the "war on sexual harassment." Both of these are worthy causes, but the tools forged to pursue them are often unwieldy and overly broad.
This issue is particularly alarming since it is usually the woman who eventually gives up her job when heterosexual couples are forced to make a choice, as in the case of no-spouse rules (applied to couples working together and planning to get married). Therefore, these facially neutral policies disparately impact the employment opportunities of women, and are arguably discriminatory under Title VII of the Civil Rights Act.
This is an area of employment law, worker privacy rights on and off duty, which I think is ripe for reconceptualization. This article starts down that path. You can download it here.
Chris Knott of the Anonymous Employee website (that we featured here a few months ago) wrote us about a new program his company is launching in which employees can use the Anonymous Employee web site to anonymously register complaints about bullying being perpatrated against them in the workplace.
The anonymous nature of these complaints is especially important because as The Anonymous Employee Press Release on this new program indicates, complaining about bullying directly to one's employer can many times lead to detrimental consequences:
Of people who have reported bullying in the workplace: *WBTI Research (2003)
17% are transferred
33% end up leaving voluntarily
37% were terminated
In only 13% of those cases, was the bully censored, transferred or terminated.
[Anonymous Employee] suggest[s] communicating your concerns to your employer anonymously. www.AnonymousEmployee.com allows you to safely communicate your concerns with superiors without having to reveal who you are. You can test the waters and determine the support you might receive before launching an official complaint.
Interesting idea and here's hoping that it helps some employees successfully deal with abusive supervisors or co-workers.
The New Jersey Supreme Court yesterday ruled that a clause in an arbitration agreement prohibiting class actions was unenforceable. Rather than striking the entire arbitration agreement, however, the court struck only the class action clause, and enforced the underlying arbitration agreement. The case is Muhammad v. County Bank of Rehoboth Beach, Delaware, ___ A.2d ___, No. A-39-05 (Aug. 9, 2006).
Wednesday, August 9, 2006
As reported in Paul Secunda's post a few days ago, Wal-Mart had expressed something resembling indifference to the fact that workers at one of its stores in China had unionized. That seemed shocking, but I think we now know why. The New York Times has just reported that Wal-Mart will work with the Chinese government to establish unions at all of its stores in that country. You read that right, all of its stores. According to the Times:
Wal-Mart, the world’s largest retailer, said today that it would work closely with Chinese officials to establish labor unions at all of its outlets here. Wal-Mart said it would form an alliance with the government-backed All China Federation of Trade Unions because it wanted to create “an effective and harmonious way of facilitating the establishment of grassroots unions” at its stores.
Of course, there's a catch. As the article notes, an obvious motivation is Wal-Mart's ability to tap into the huge, but severely restricted Chinese market. Moreover, "union" doesn't appear to be the same thing in China as in the U.S. In addition to Chinese unions lacking a history of collective bargaining:
[e]xactly how the unions are being formed and who has control of them is still unclear, and some experts doubt the unions now being formed at Wal-mart will engage in collective bargaining negotiations with the company. Liu Kaiming, director of the Institute of Contemporary Observation, a labor rights organization based in Shenzhen, applauded the Wal-Mart announcement today but questioned whether it would lead to significant change. “I don’t see any bargaining power in the unions in China,” Mr. Liu said. “The function of Chinese unions is to urge workers to participate in the work, to care about their welfare and to organize recreational activities for them.” Independent unions are banned in China. But the All China Federation of Trade Unions — the government-controlled labor union — issued a statement earlier this week, suggesting that it would be able to contend with one of the world’s biggest companies. “If Wal-Mart union members are subjected to unfair treatment at work, unions at the national, provincial, city and district level will strive all out to protect employees’ legitimate rights,” the announcement said.
No matter what the Wal-Mart unions actually look like, this is still important news. Unions have never been able to achieve even a moral victory at Wal-Mart and this, at the minimum, represents that.
Richard Reuben (Missouri) has posted on SSRN his recent scholarship published in the Harvard Negotiation Law Review: Democracy and Dispute Resolution: Systems Design and the New Workplace.
From the abstract:
There has been growing discussion in law reviews and business journals about the so-called new workplace, which is distinguished from the old, in part, by greater employee mobility and job flexibility. This article extends that discussion by exploring the implications of the new workplace for the design of dispute resolution systems. In particular, it argues that the structure and values of the new workplace correspond to the essential values of democratic governance, and that dispute resolution should be integrated into the new workplace in a way that enhances rather than diminishes these core democratic values.
Richard's article discussing the proper role of ADR in the evolving 21st century workplace can be downloaded here.
Cindy Estlund (NYU) has posted on SSRN her forthcoming piece in the Annual Review of Law and Social Science: The Death of Labor Law?
Here's the abstract:
This review tells three interlocking tales of decline, each with its respective prognosis for recovery: the declines of labor law scholarship, labor law, and organized labor. The relationship between the latter two, and the role that a reformed labor law might play in reviving organized labor, are matters of continuing controversy. In the meantime, two developments on the ground suggest a way forward for organized labor, labor law, and labor law scholars.
Activist unions have found success with a new organizing model: neutrality and card-check agreements. Elsewhere, anti-sweatshop activists are developing increasingly sophisticated supplier codes and monitoring schemes to improve labor standards in developing countries. Both strategies, with their basically contractual architecture, exemplify what regulatory scholars are calling "new governance." These strategies suggest a potential way around the roadblocks that meet labor law reform proposals, and toward more agile and responsive forms of workplace governance.
You can download what is sure to be a highly influential article in the field of labor law reform at this link.
The Board (in a 3-2 order--so much for my previous post on unanimity on the Board) recently decided to review a Regional Director's rejection of an employer's election petition. In Marriot Hartford Downtown Hotel, 347 N.L.R.B. No. 87 (the link is to a subscription BNA site--the NLRB hasn't posted the order on its website yet), the majority concluded that there was a material issue whether the union was requesting recognition when it pressured Marriot to sign onto a neutrality agreement by picketing and seeking public support for its nascent organizing drive.
Under Section 9(c)(1)(B), an employer can petition for an election if the union presents to an employer a claim to be recognized as a Section 9 exclusive bargaining representative. The question in this case is whether the union's actions constituted such a claim. Marriot argued that the union made such a request by demanding a
card-check agreement, engaging in representational picketing, and invoking a city ordinance that applies only where a
union has made a demand for recognition. The majority concluded that Marriot's arguments warranted review, particularly given that the Board was reconsidering its position on voluntary recognition, card-check agreements, and neutrality agreements in several other pending cases. The dissent convincingly argued that the union's actions fall short of a demand for recognition and noted that it appears that the majority is seeking to reverse the Board's finding in New Otani that requesting a card-check agreement is not a request for recognition.
This is obviously a case of parties fighting over the timing of the election. The Board's review of the employer's argument is troubling, as it is generally presumed that the union is able to control the timing of its demand for an election. If the employer wins this case, unions' ability to engage in initial organizing will be severely hampered. Essentially, unions would be precluded from seeking neutrality and card-check agreements without the threat of an election being called before their campaign has advanced enough to gain majority support. Moreover, this appears to be a trend with the current Board in attacking neutrality and card-check agreements--a disturbing trend for unions, which have increasingly turned to such agreements.
By The Associated Press; hat tip to Michael Fischl:
Katy Tanner, a 21-year-old employee of an alternative fashion store in Wales, was fired by text message. Ms. Tanner, who took a sick day last week, turned on her cellphone the next day to discover she had been fired. “We’ve reviewed your sales figures and they’re not really up to the level we need,” the store’s manager, Alex Barlett, wrote in the message. “As a result, we will not require your services anymore. Thank you for your time with us.” The company defended the termination-by-text message as being “part of the youth culture.’’ Ms. Tanner said, “I don’t think you can count it as official by text.”
Tuesday, August 8, 2006
Here's an interesting case at the intersection of criminal law and workplace privacy.
In United States v. Ziegler, No. 05-30177 (9th Cir., Aug. 8, 2006), the Ninth Circuit consider "whether an employee has an expectation of privacy in his workplace computer sufficient to suppress images of child pornography sought to be admitted into evidence in a criminal prosecution." Apparently, the company had owned and routinely monitored all workplace computers and employees were aware of the monitoring. It was through this monitoring that the owner of the company reported Ziegler to the FBI for downloading child porn on his workplace computer.
The dispute surrounds whether IT people at the company were permitted to go into Ziegler's office without his knowledge and without his permission in order to make copies of the information on his hard drive. There was some dispute as to whether this was done voluntarily by company employees or at the behest of the FBI, but the 9th Circuit proceeded on the assumption that this was conduct directed by the government.
In finding that no such privacy right in Ziegler's workplace computer existed regardless, the Court commented:
[A] criminal defendant may invoke the protections of the Fourth Amendment only if he can show that he had a legitimate expectation of privacy in the place searched
or the item seized.
Other courts have scrutinized searches of workplace computers in both the public and private context, and they have consistently held that an employer’s policy of routine
monitoring is among the factors that may preclude an objectively reasonable expectation of privacy.
Employer monitoring is largely an assumed practice, and thus we think a disseminated
computer-use policy is entirely sufficient to defeat any expectation that an employee might nonetheless harbor.
The lesson is that as long as an employer has an internet/computer policy which puts employees on notice that the computer belongs to the company and that activity on the computer will be routinely monitored, employees are not going to have a legitimate expectations of privacy for 4th Amendment purposes.
BTW, kudos to Matt Finkin (Illinois) for having his law review article mentioned by the court ("Surely, some lament the general lack of privacy in the modern workplace. See, e.g., Matthew W. Finkin, Employee Privacy, American Values, and the Law, 72 CHI.-KENT L. REV. 221, 226 (1996)."), even if the Court did not ultimately agree with his sentiments.
Update: Orin Kerr at the Volokh Conspiracy points out
a crucial Fourth Amendment point that the 9th Circuit seems to have missed.
Interestingly, the distinction is an employment one, relating to the
workplace privacy rights of government employees versus private
employees when it comes to government searches. Orin's point:
Okay, so by now you're wondering, what difference does it make? If you analyze this case under the private-sector framework, you still will reach the same result because the employer had "common authority" to search the computer, right? Off the top of my head, yes, I think that's right. But the framework announced in Ziegler will still make an enormous difference in lots of other cases.
Further Update: Dan Solove, a privacy law expert at Concurring Opinions, has his thoughts on the Ziegler case here.
Can't say I've seen this before and thanks to Howard Bashman at How Appealing for the tip. It seems that the Fourth Circuit Court of Appeals in the case of LaRue v. DeWolff, Boberg & Assocs., Inc., No. 05-1756 (4th Cir., Aug. 8, 2006) has publicly chastised in a published Order the Secretary of Labor for filing a late amicus brief.
Clearly the court wanted to make a point as it granted the DOL's motion to file the amicus brief out-of-time, only to deny the underlying petition for rehearing and petition for rehearing en banc which the DOL's brief sought to support.
Apparently, this was not the first time the DOL has been guilty of such a transgression and the Court was looking to attend to some unfinished business:
With respect to the Secretary’s views, the court notes that they are always welcome on any matter in which the Secretary has an interest. The timely submission of those views, however, will assist the court in giving them the attention they deserve. Initial submission of these views in a petition for rehearing — and an untimely one at that — affords neither the litigants or this court a proper chance to review the case in single, rather than piece-meal, fashion. Thus, the Secretary’s belated entry into Taylor v. Progress Energy, Inc., 415 F.3d 364 (4th Cir. 2005), was a discourtesy both to the parties in that case and to the court.
While it may suit the agency’s convenience to troll for panel results to which it takes exception, such a practice is not consistent with the orderly and conscientious disposition of claims in an appellate court.
Troll. Not a good term in the blogosphere and certainly not a good term for a court to use when describing your litigation strategy.
FWIW, there is also an interesting discussion on the scope of ERISA breach of fiduciary duty claims under Section 502(a)(2) involving how individual plaintiffs must allege a loss to the plan in order to proceed under that remedial section.
The Department of Labor today issued its draft Strategic Plan for FY 2006-11. Chapters include:
- A Prepared Workforce
- A Competitive Workforce
- Safe and Secure Workplaces
- Strengthened Economic Protections
Written comments can be emailed directly to the DOL.